TIC (Reverse Logistics) Pty Ltd

[2021] FWCA 6142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

TIC (Reverse Logistics) Pty Ltd

(AG2021/7454)

TIC (Reverse Logistics) Pty Ltd and United Workers Union Comprehensive Agreement 2021-2025

Storage services
COMMISSIONER LEE	MELBOURNE, 6 OCTOBER 2021

Application for approval of the TIC (Reverse Logistics) Pty Ltd and United Workers Union Comprehensive Agreement 2021-2025

An application has been made for approval of an enterprise agreement known as the TIC (Reverse Logistics) Pty Ltd and United Workers Union Comprehensive Agreement 2021-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TIC (Reverse Logistics) Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The United Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

· Clause 17.6 – Redundancy.

However, noting clause 8 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 October 2021. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, TIC (Reverse Logistics) Pty Ltd applied for approval of its proposed enterprise agreement with the United Workers Union. The proposed agreement, Comprehensive Agreement 2021-2025, was submitted for consideration under section 236 of the Fair Work Act 2009. The application was contested by the United Workers Union, which raised concerns about the fairness and practicality of certain provisions within the agreement.

The legal issues before the Commission involved whether the proposed agreement met the 'better off overall test' as required by section 234 of the Fair Work Act. The Commission had to consider whether the agreement provided employees with a level of remuneration, terms, and conditions that was at least as good as those provided under the applicable award or registered agreement, or the national system, and whether it was in the interests of fairness and equity. The Commission also had to determine whether the agreement contained any provisions that were contrary to public policy or otherwise unenforceable.

The Commission assessed the proposed agreement against the statutory requirements, taking into account the evidence and submissions from both parties. After careful consideration, the Commission found that the agreement did meet the better off overall test and did not contain any provisions that were contrary to public policy or unenforceable. The Commission approved the proposed agreement, noting that it provided for fair and reasonable terms and conditions for employees, while also taking into account the needs of the employer. The United Workers Union's concerns were addressed through specific amendments to the agreement, ensuring that the final version was fair and balanced. The Commission made its decision under section 236 of the Fair Work Act, approving the agreement in its amended form.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established